NLRB Finds Hospital’s Solicitation and Distribution Policy Unlawful

Friday, August 17, 2018

Recently, a 3-member panel of the National Labor Relations Board (“NLRB” or “Board”) ruled that the University of Pittsburgh Medical Center (“UPMC”) unlawfully prohibited off-duty employees from distributing literature in non-patient care areas of its hospitals.

Case Background

During a 2016 union organizing campaign at multiple UPMC facilities, hospital managers allegedly threatened off-duty employees with discipline for passing out union materials in cafeterias and outdoor areas of the facilities. In addition, a manager found union flyers in a break room. The manager warned employees not to leave materials there that were not directly related to hospital business, then threw the flyers in the garbage. The union subsequently filed unfair labor practice charges against UPMC, contending, among other things, that UPMC’s Solicitation and Distribution Policy was unlawful.

UPMC’s Solicitation and Distribution Policy

UPMC’s Solicitation and Distribution Policy defined “off duty” as “any period during which a staff member is not scheduled to work” and “non-working time” as time during a “workday when a staff member is on duty but is not expected to be performing work tasks (i.e., meal periods or breaks).” The policy lawfully banned solicitation during working time anywhere in a facility, and at any time in patient-care areas.

Regarding off-duty employees, the policy stated that “off-duty staff members may not enter or re-enter the interior of their work areas or other work areas within their workplace facility aside from the cafeteria, exercise facility, Human Resources building, for any purpose (including solicitation or distribution) except to visit patients, receive medical treatment, or for other purposes such as are available to the general public.”

The Board’s Decision

The Board agreed with the Administrative Law Judge’s determination that the Solicitation and Distribution Policy was unlawful because it prohibited off-duty employees, who were permissibly on hospital property, from engaging in solicitation and distribution of union literature. The Board found that the policy “allowed off-duty employees to access the cafeteria but it prohibited them from soliciting (or being solicited by) employees on non-working time, both in the cafeteria and in other nonworking and non-patient care areas of the hospitals.” In addition, UPMC was unable to show that the ban on off-duty solicitation was necessary to avoid disruption of healthcare operations or disturbing patients, which could have justified the policy.

Moreover, the Board held that UPMC’s unwritten ban on union materials in non-working areas, such as break rooms, was unlawful, as was the collection and removal of the flyers.

Employer Takeaways

Hospital policies regarding distribution of literature and solicitation by employees require careful drafting, and consistent, non-discriminatory enforcement. Hospitals may, and should, maintain lawful restrictions on solicitation and distribution activity including: 1) when and where solicitation and distribution can, and cannot, occur; 2) the rights of on-duty and off-duty employees to solicit or distribute literature; and 3) a ban on solicitation and distribution by non-employees. Furthermore, Access to Premises policies should dovetail with Solicitation and Distribution policies to ensure limitations on off-duty employees and non-employees will pass NLRB muster. Employers with questions regarding implementing such policies – or that wish to review their current policies – would do well to consult with competent counsel.

Mark Nelson thrives on crafting legal strategies that are grounded in each client's business objectives. In his more than 30-year career, he has represented management in labor relations and employment discrimination issues and has extensive experience representing employers in a wide variety of labor matters including:

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558 Telephone (708) 357-3317 If you would ike to contact us via email please click here.